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2000(4) Supreme 652
SUPREME COURT OF INDIA
(From Karnataka High Court)
S. Saghir Ahmad & Doraiswamy Raju, JJ.
Karnataka State Road Transport Corporation & Anr. -Appellants
versus
S. Manjunath etc. -Respondents
Civil Appeal No. 113 of 1998
With
Civil Appeal No. 114 of 1998
With
Civil Appeal No. 115 of 1998
Decided on : 24-4-2000
Counsel for the Parties :
For the Appellants : K.R. Nagaraja, K.K. Tyagi, Ms. Abhilasha, Ms. Shalini Bhalla, A.P. Jain, Advocates.
For the Respondents : S.S. Javali, Sr. Advocate, S.N. Bhat, N.P.S. Panwar, Advocates.
Held : In the light of the position of law, thus laid down it has to be seen under what class or category the cases before us will fall and whether despite of the fixation of the maximum period of probation there are any special provision in the rules which could negate or nullify the inevitable consequence of a deemed confirmation, arising out of a ceiling fixed firmly on the period of probation and extension to be made thereafter, if any. Since much stress has been laid by the counsel on either side on the purport to be of Regulation 11, it becomes necessary to consider the ambit and scope of the stipulations therein. The Regulation deals with the period of probation of an appointee, other than by way of promotion [clauses (1) to (3) of Regulation 11] and also about the period of officiation in respect of an appointee by way of promotion [clauses (4) to (9)]. The Regulation does make, in our view, substantial difference, for purposes of confirmation between an appointee by promotion and one appointed, otherwise than on promotion, and purport to deal with these two categories distinctly and separately, in all respects - the relevant period, subsequent extension and consequences arising out of expiry of such maximum period coupled with the action or inaction on the part of the competent authority for the purposes of the Regulation. The learned counsel for the appellant corporation could not easily get over the dichotomy maintained throughout in the various clauses of this Regulation among the two categories or method of appointment. But, what was strongly pleaded was that Clause (8) of the Regulation takes care of both categories and, therefore, unless a specific order has been made by the competent authority, the person concerned shall not be considered to have satisfactorily completed his period of probation and any delay in the issue of an order shall not entitle the person to be deemed to have satisfactorily completed the probation. (Para 13)
The Regulation deals with two different categories of cases - one about the "probation" of an appointee other than by way of promotion and the other relating to "officiation" of a person appointed on promotion. The similarity of purpose and identity of object apart, of such provision, there is an obvious difference and positive distinction disclosed in the manner they have to be actually dealt with. The deliberate use of two different phraseology "probation" and "officiation" cannot be so lightly ignored obliterating the substantial variation in the method of handling such categories of persons envisaged by the Regulations. The mere fact that a reference is made to Clause (3) also in the later part of Clause (8) of the Regulation could not be used to apply all the provisions relating to the category of appointees on "officiation" to the other category of appointees on "probation". The stipulation in Clause (8) of the Regulation when making the passing of an order, a condition precedent for satisfactory completion specifically refers only to the completion of "period of officiation". Similarly, notwithstanding a reference made to Clause (3) alongside Clause (4), in stipulating the consequences of any delay in making an order declaring satisfactory completion, the reference is confined only to deemed satisfaction and completion of "the period of officiation", and not of probation. Clause (9) of the Regulation insofar as it provides for confirmation as a sequel to declaration, only deals with a promotee to a temporary post and not of the other category. While dealing with the termination of a candidate, not found suitable for the post, clause (3) of the Regulation envisage such termination being made, at any time "within the period of probation", and not at any time after the completion of such maximum period of probation. Consequently, the cases on hand also would fall within the category of cases dealt with in Dayaram Dayal s case (supra) and Wasim Beg s case (supra) and the services of the respondents could not be put an end to except by means of departmental disciplinary proceedings, after following the mandatory requirements of law. Therefore, the High Court cannot be faulted for interfering with the orders of termination of the services of the respondents. (Para 14)
JUDGMENT
Raju, J.-These three appeals are dealt with together since not only they involve a common question of law but also for the reason that they were dealt with in common in the High Court and submissions have been also in common before us.
2. The respondent in Civil Appeal No. 113/98 was appointed as Assistant Traffic Manager in Karnataka State Road Transport Corporation (for short KSRTC ) pursuant to a Select List of candidates prepared and published on 13/15-12-82 for a period of two years and was placed on probation. On 10.1.85, due to certain lapses, which were pending inquiry, an order postponing one increment was passed. On 7.8.85, the period of probation was extended upto 14.6.86. Ultimately, on 13.1.88 his services came to be terminated for the reason that his Performance Report during the period of probation was not satisfactory and he also failed to show any improvement despite having been given a chance to do so. Aggrieved, Writ Petition No. 4273/88 was filed before the High Court challenging the said order of termination and for consequential benefits.
3. The respondent in Civil Appeal No. 114/98 joined the service in KSRTC as a Clerk on 5.3.63. Thereafter, he was considered for appointment and included in a Select List for appointment (not by way of promotion) as Assistant Traffic Manager. On 22.11.82, the respondent was offered appointment as such initially for a period of two years and was placed on probation for a period of two years. On 13/15.12.82, the appointment order came to be issued as Assistant Traffic Manager and he was also placed on probation for two years. On 14.12.84 when the period of probation was over, he was continued in service without passing any order of confirmation since he was found to be indifferent to the job for which action appears to have also been taken resulting in a punishment of censure and subsequently also of withholding one increment. His appointment as Assistant Traffic Manager came to be terminated and he was reverted to his substantive post of Junior Assistant. This was challenged by means of a Writ Petition in the High Court.
4. The respondent No. 1 in Civil Appeal No. 115/98 was selected for appointment as Assistant Mechanical Engineer Class-II and on 28.11.81 he was also appointed as such and placed on probation. He had incurred certain adverse remarks on deficiency being noticed in his performance. On 6.12.83 though the period of two years had come to an end, the same was extended on 19.4.84 for a period of six months and further extended on 7.6.84 for another six months. During his service, he was found to have been guilty of various acts of misconduct and ultimately on 16.11.85 his services were terminated on the ground of unsuitability as also misconduct. Aggrieved, the respondent filed a Writ Petition before the High Court.
5. All the three Writ Petitions were initially heard by a learned Single Judge of the Karnataka High Court and by a common order dated 3.11.95 those Writ Petitions were allowed on the view that there was an implicit term in the scheme of Regulation governing their services that on the expiry of the period of probation beyond the maximum term provided therein, an employee will be deemed to have been confirmed inasmuch as the Corporation cannot terminate their services on the expiry of such period. In coming to such a conclusion, the learned Single Judge followed an earlier decision of a Division Bench dated 5.2.82 in (M. Balachandra Rao v. KSRTC & Anr.1). The Corporation, aggrieved by such orders, pursued the matter on Appeal before a Division Bench in Writ Appeal Nos. 36-38/96. The Division Bench adverted to the decisions of this Court reported in State of Punjab v. Dharam Singh2; Paramjit Singh v. Ram Rakha3 and M.K. Agarwal v. Gurgaon Gramin Bank4 and observed that the position in the appeals is no different from the one dealt with in those decisions of this Court and consequently confirmed the order of the learned Single Judge. Hence, the abo
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